December 18, 2018

SCOTUS 2018 Fall Term: Three Capital Cases Argued plus Petition of Note

Bucklew v. Precythe, No. 17-8151

In Bucklew v. Precythe, the Supreme Court took up the latest in a line of capital cases challenging a state’s method of execution. Unlike other recent cases that questioned whether certain methods of execution are inherently unconstitutional, Missouri death row prisoner Russell Bucklew challenged the state’s lethal injection protocol as it applies to his unique medical circumstances. Mr. Bucklew suffers from a rare, debilitating medical condition known as cavernous hemangioma that could cause him to experience extreme suffering during the lethal injection process. The Court agreed to review a number of questions raised by the case, including whether Mr. Bucklew must propose an alternative method of execution in order to bring the challenge; if so, whether he met his burden to establish the existence of the alternative method; whether the Court should assume that the state personnel conducting the execution would be competent to carry it out; and what evidence is needed to establish that one method of execution carries less risk of suffering than another.

During oral argument on November 6, 2018, the Court focused primarily on the questions of whether Mr. Bucklew had shown that he would experience extreme suffering during any lethal injection procedure and whether the proposal of an alternative method that has not yet been used by any state could constitute a viable alternative method. Justice Sotomayor sharply questioned counsel about Mr. Bucklew’s current medical status and whether any decision in the case would be solely advisory given the possibility that the condition might change. Justice Roberts, meanwhile, questioned whether Mr. Bucklew’s proposed alternative method of execution—nitrogen hypoxia—was actually an “available” method, given that no state has yet used it. Justice Kavanaugh, meanwhile, expressed considerable skepticism in response to the State’s assertion that even if a method of execution were to create brutal and gruesome pain for the prisoner, it would nonetheless be constitutional if there was no other alternative. As with prior cases challenging methods of execution, the opinion will likely reflect the significant divisions in the justices’ views on the Eighth Amendment and capital punishment.


Madison v. Alabama, No. 17-7505

Vernon Madison is on death row in Alabama for the 1985 murder of a police officer: a crime which, due to a series of strokes and the development of vascular dementia, he is wholly unable to remember committing. On October 2, 2018, the U.S. Supreme Court heard arguments about whether Mr. Madison is competent to be executed. Past Supreme Court decisions have held that it violates the Eighth Amendment to execute someone who is “insane,” or someone who is so mentally ill as to be unable to rationally comprehend the reasons for his execution. 

Mr. Madison is routinely unable to remember where he is or why he is facing the death penalty. When told that he is on death row for committing this crime, Mr. Madison can temporarily understand why the State intends to execute him, but he quickly forgets this information. He is constantly “disoriented as to time and place,” “cannot remember the alphabet past the letter G,” and sometimes soils himself because he cannot find the toilet next to the bed in his cell.

During oral arguments, Mr. Madison’s counsel—Equal Justice Initiative founder and director Bryan Stevenson—conceded that it is not enough that a prisoner simply be unable to remember the commission of a crime but argued that the Eighth Amendment prohibits execution of someone whose mental and physical deterioration has left him so fragile and vulnerable that, in addition to not remembering the crime, he is unable to orient himself to time and place. Mr. Madison, his attorneys argue, may not be technically “insane” or incapable of understanding why the State intends to execute him; but he is nonetheless the type of individual that the Eighth Amendment shields from execution. During oral argument, Mr. Stevenson told the Court, “The 8th Amendment isn’t just a window. It’s a mirror. And what the court has said is that our norms, our values are implicated when we do things to really fragile, really vulnerable people. And what we’ve argued is that dementia in this case renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency.”

In response, the State argued that vascular dementia and strokes could be sufficient to render someone incompetent to execute, but because Mr. Madison was able to rationally understand why the State intended to execute him, he did not fall within the narrow category of individuals that are exempt from execution under the Eighth Amendment.


Carpenter v. Murphy
, No. 17-1107

On November 27, 2018, the Supreme Court took up an unusual question in a capital case: whether the state of Oklahoma lacked jurisdiction to prosecute capital defendant Patrick Murphy. Mr. Murphy, who is a member of the Muscogee (Creek) Indian Nation, was convicted of the murder of George Jacobs, also a member of the Creek Nation, in Oklahoma state court. In federal habeas proceedings, Mr. Murphy’s lawyers argued that the state lacked jurisdiction to prosecute the crime because it occurred on land belonging to the Creek Nation. They introduced evidence that the land in question belonged to the Creek Nation, based on boundaries set in 1866 which were never formally disestablished by Congress. As a result, they argued, any murders that took place in that territory involving one or more members of the Creek Nation would be subject to exclusive federal jurisdiction. A host of other civil and criminal laws and regulations would also potentially be affected by the jurisdictional question, as the disputed territory spans nearly half the state of Oklahoma and is home to roughly 1.8 million people.

1866 Tribal Boundaries

1866 Tribal Boundaries

Supreme Court filings

During oral argument, the justices appeared skeptical of the State’s argument that disestablishment of the Creek Nation had taken place due to the termination of tribal sovereignty over several years. Justice Kagan, along with Justices Breyer and Sotomayor, seemed especially critical of the State’s claim that de facto dissolution of tribal sovereignty was sufficient to constitute formal disestablishment. Several justices, however, appeared concerned with the potential destabilizing impact ruling in favor of the Creek Nation would have on the people within the disputed territory. Justice Breyer remarked that the millions of people living within the boundaries, “have built their lives . . . on municipal regulations, property law, dog-related law, thousands of details. And now, if we say really this land, if that’s the holding, belongs to the tribe, what happens to all those people? What happens to all those laws?”

Attorneys for the Creek Nation challenged the notion that the decision would have a widespread impact, arguing that destabilizing effects could be mitigated through routine agreements between the state, the Creek Nation, and the federal government. Shortly after hearing arguments, the Supreme Court requested additional briefing from the parties to address whether Oklahoma could theoretically retain jurisdiction over criminal prosecutions that took place in the territory at issue, even if the Court were to rule that the Creek Nation had never been formally disestablished.

Notable Petition: Moore v. Texas

Last year, the Supreme Court issued its decision in Moore v. Texas, invalidating the process by which Texas state courts assessed intellectual disability in capital cases. Writing for the Court, Justice Ginsburg found that the so-called “Briseno factors” impermissibly relied on lay stereotypes about individuals with intellectual disabilities, wrongly emphasized adaptive strengths rather than deficits, and too heavily focused on improved performance while in prison—all contrary to accepted scientific standards for assessing intellectual disability. As a result, there was an impermissible risk that individuals who are in fact intellectually disabled according to scientific diagnostic measures would nonetheless be subject to execution under the Briseno framework, and therefore, the test was unconstitutional. The Court’s 2017 decision reversed the decision of the Texas Court of Criminal Appeals (CCA) denying relief to Texas death row prisoner Bobby Moore and remanded for further proceedings consistent with the opinion.

Bobby James Moore

Bobby James Moore

Texas Dept. of Corrections

Armed with this decision, pro bono attorneys for Mr. Moore, led by Skadden partner Cliff Sloan, went back to the CCA to secure a life sentence for their client. In light of the Supreme Court’s decision, the District Attorney conceded that Mr. Moore was intellectually disabled and therefore ineligible for execution. In June 2018, however, the CCA again ruled that Mr. Moore was not intellectually disabled and denied the requested relief from his death sentence. While acknowledging the Supreme Court’s decision prohibiting use of the Briseno factors, the CCA continued to look to many of the same lay stereotypes that formed the basis for the Briseno factors and relied on a State expert’s evaluation conducted in 2015. That evaluation, which concluded that Mr. Moore is not intellectually disabled, was conducted prior to the Moore decision, and was therefore also based on the Briseno factors.

Cliff Sloan, Skadden Partner & Pro Bono Counsel for Mr. Moore

Cliff Sloan, Skadden Partner & Pro Bono Counsel for Mr. Moore

Skadden, Arps, Slate, Meagher & Flom

As a result of the CCA’s refusal to accept the consensus of all parties that he is intellectually disabled, Mr. Moore was forced to again turn to the Supreme Court for relief. In his new petition seeking review, Mr. Moore also requested summary reversal of the CCA’s ruling in light of the Court’s 2017 decision. The ABA submitted an amicus brief in support of this request, arguing that the CCA’s most recent ruling again impermissibly invokes the specter of the Briseno factors in determining that Mr. Moore is not intellectually disabled. The ABA brief also discussed the important rule of law principles implicated by the CCA’s apparent disregard for Supreme Court precedent.

Other legal scholars and groups have joined the call for the Court to grant the petition and summarily reverse the CCA’s latest decision, including Kenneth Starr, who served as Solicitor General under President George H.W. Bush. Mr. Starr also authored an op-ed in The Washington Post urging the Court to reverse the decision. He wrote, “For our system to work, the Supreme Court must make sure that its rulings are respected and faithfully applied. In this case, I hope the Supreme Court will act to correct the Texas court’s fundamental error, especially since Moore faces the most extreme punishment our government can impose.”